Drew Cline: NH's campaign finance laws are a nonsensical mess

As demonstrated last week, New Hampshire’s campaign finance laws are a vague and confusing mess that can throw election-changing decisions to the office of the politically appointed state attorney general. Anyone who cares about the integrity of our state elections should insist that legislators do a thorough rewrite of the laws to make them simpler, less advantageous to incumbents, and harder to violate without consequences.

On Friday, Attorney General Joe Foster settled a dispute between the state Republican Party and the campaign of Gov. Maggie Hassan. His decision was as confusing as the law it tried to settle.

Hassan declared her candidacy on June 12. Why so late? She’s the sitting governor; did she not know she was going to run again? No, she knew. She waited so long because the law encourages candidates to wait until the last possible minute to declare.

A candidate can form a political committee to raise money without declaring that he or she is actually running. It is called an “exploratory committee,” and it may raise unlimited sums of money from individual donors and political action committees (PACs). But once a candidate declares that he or she is definitely in the race, state law restricts donations to no more than $5,000 if the candidate agrees to state-set spending limits, or $1,000 if the candidate rejects the spending limits.

If Joe Blow announces, “Hey, y’all, I’m thinking about running for dog catcher,” then he is free to accept daily $1 trillion checks from Harry Hound or the Cats Are Evil and Must Be Stopped PAC. As soon as he says he is in, the checks are limited to between $5,000 and $1,000. So Joe is going to wait as long as possible to announce. That creates an advantage for incumbents, who already have high name recognition and a built-in reason for people to give them money (they’re already in power, so cozying up to them is a safer bet).

Supposedly, campaign donation limits exist to prevent corruption, or the appearance of corruption, in political campaigns. Isn’t it strange that under state law a person is presumed to be entirely incorruptible until the day he or she declares for office?

This is the law that tripped up Gov. Hassan’s campaign and three national union PACs. The day Hassan announced she was running, two PACs donated $10,000 to her campaign, and another donated $25,000. The law was vague enough that Hassan and the unions thought they had complied with it, but the GOP argued that they did not. Do the contribution limits take effect the day a candidate announces, or the next day? Foster ruled that they took effect at midnight, effectively the next day. Was that what legislators intended? Maybe. Without that clarity in the law, though, Hassan was able to accept donations 10 times the legal limit on the day she became a candidate.

Foster also let Hassan keep $21,000 even though the PACs had all given it illegally. They donated before registering with the state, which is a felony. But the law does not state that donations made in violation of that provision must be returned.

If the sitting governor and three national labor unions, which have huge legal teams, did not understand the law, how can a low-budget challenger be certain he or she complies? When the law is so vague that the attorney general gets to decide what it says, then the law has given the attorney general the power to shape the outcome of state elections. Surely legislators did not intend that.

The chapter governing campaign finance (RSA 664) is 23 sections long. It is complex, often vague, and sometimes outdated. For instance, a section from 1983 requires the secretary of state to “give or send by mail a copy of this chapter” to everyone who files to run for office. Does emailing each candidate a link to the chapter as posted on the state website count?

One section lays out campaign finance expenditure limits to which candidates can voluntarily adhere. Anyone who does can accept contributions five times as large as candidates who do not ($5,000 vs. $1,000). But the spending limits are so low that no one agrees to them. For the governor’s office and U.S. Senate, the limits are $625,000 in the primary and the same for the general election. For perspective, Hassan raised $1.9 million for her 2012 campaign, and Republican candidate Ovide Lamontagne raised a little less than that. Why would anyone ever agree to be outspent by that large a margin?

The spending discrepancy is worse when independent expenditures are added. Outside groups spent $11 million on behalf of Hassan and $8 million on behalf of Lamontagne in 2012. A challenger who agreed to the spending limits would agree to unilaterally disarm amid a barrage of negative ads. The useless law should be repealed.

The individual donation limit of $1,000 cannot be bad, though. Right? It prevents big donors from financing state campaigns. True, but what they might have given directly to a candidate, they give instead to outside organizations, which fill the airwaves with all of those negative ads you hate. The donation limit is successful only under the Charlie Sheen definition of winning.

In seeking to regulate campaign spending for the supposed purpose of discouraging corruption, we have heavily advantaged incumbents, encouraged the participation of outside organizations (which everyone claims to hate, but I think are fine) and given the attorney general a great deal of influence over campaign activities. This cannot be the best way to ensure that campaigns are financed fairly and transparently.

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Andrew Cline is editorial page editor of the New Hampshire Union Leader. His column runs on Thursdays. You can follow him on Twitter @Drewhampshire.